Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 05-1008
LLOYD MATTHEWS,
Plaintiff, Appellant,
v.
EFRAIN VARGAS, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Lynch and Howard,
Circuit Judges.
Lloyd Matthews on brief pro se.
Stephen G. Dietrick, Deputy General Counsel, and Nancy Ankers
White, Special Assistant Attorney General, on brief for appellees,
Efrain Vargas, Gilbert Lemon, II, Lucien Mandeville, John Faulkner,
Brian Gomes, John Marshall, John McGonagle, John Jones, and Richard
Picard.
David A. Hilton, Lisa R. Wichter and Morrison Mahoney LLP, on
brief for appellees, Khalid Khan, M.D., Carla Cesario, Kristen
Curry, Maureen Quinty, and Denise MacKinnon.
November 20, 2007
Per Curiam. Lloyd Matthews sued numerous prison
correctional and medical officials who, he alleged, inflicted
unlawful injury and provided inadequate medical care to him. The
medical defendants were granted summary judgment. Matthews
proceeded to a jury trial against the remaining correctional
defendants, two of whom, Officers Vargas and Lemon, countersued
Matthews for their own injuries. At the conclusion of the trial,
the claims against certain of these correctional defendants were
dismissed. As to those who remained, the jury verdict was mixed.
The jury found in favor of the defendants on most of Matthews'
claims. The jury, however, did find in favor of Matthews against
Lieutenant Picard, awarding Matthews compensatory damages in the
amount of $1.00. The jury rejected Officer Lemon's counterclaim.
It found in favor of Officer Vargas on his counterclaim and awarded
$1.00 in compensatory damages against Matthews. Matthews has
appealed. We affirm.
1. Discovery and the appointment of counsel
Matthews' primary complaint on appeal which underlies and
infects all of his claims is his contention that he was denied
discovery. We reject that contention. We have carefully reviewed
the extensive record and it is clear that, rather than moving his
case forward, Matthews spent an inordinate amount of time filing
repetitive motions resisting the court's rulings which, contrary to
Matthews' continued assertions, did not deny him all discovery but
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simply refused Matthews' request to conduct deposition discovery in
the manner which he had requested. This waste of time included at
least three attempts at seeking mandamus relief from our court.
Matthews did obtain some documentary discovery and could have
obtained, but did not, deposition discovery by written questions.
The district court did not abuse its discretion in its handling of
the discovery issues in this case. See Bogosian v. Woloohojian
Realty Corp., 323 F.3d 55, 64 n.7 (1st Cir. 2003) (reciting the
abuse of discretion standard for discovery rulings). After more
than six years and 260 separate docket entries, there was no abuse
of discretion in setting this case for trial. Similarly, there was
no abuse of discretion in the district court's denial of Matthews'
repeated motions for appointment of counsel. See DesRosiers v.
Moran, 949 F.2d 15, 23-24 (1st Cir. 1991) (reciting the district
court standard for appointment of counsel and the appellate
standard of review).
2. Summary judgment in favor of the medical defendants
The district court did not err in granting summary
judgment in favor of the medical defendants. As he conceded at the
pretrial conference, Matthews lacked evidence, whether through
expert testimony or otherwise, as to the proper level of care and
how the medical defendants had deliberately fallen below that
level. The district court correctly concluded that, accordingly,
no jury could find that the medical defendants displayed deliberate
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indifference. See Ruiz-Rosa v. Rullan, 485 F.3d 150, 156 (1st Cir.
2007) (reliance primarily on the allegations in complaint to oppose
summary judgment on a claim of deliberate indifference does not
satisfy Rule 56 standard); Acosta v. U.S. Marshals Serv., 445 F.3d
509, 514 (1st Cir. 2006) (court is not required to credit
plaintiff's bare and conclusory assertion that defendants were
deliberately indifferent to serious medical need). For reasons
already noted, we reject Matthews' contention that he was prevented
from seeking expert testimony to support his claims.
3. Denial of trial witnesses
The district court did not err in declining to issue
witness subpoenas because Matthews had not provided the appropriate
witness fees, see Fed. R. Civ. P. 45(b)(1), explaining that the
court was not permitted to expend public funds on behalf of a
private litigant in a civil action. On appeal, Matthews cites no
counter authority. Nor did the court err or abuse its discretion
in refusing to issue writs of habeas corpus ad testificandum to
inmates. Matthews did not specify the contents of any expected
testimony, explaining that he had "no idea what his witnesses will
recall of the events at issue." In any event, none of Matthews'
proposed inmate witnesses were eyewitnesses to the incidents at
issue. And, the detail which Matthews now provides on appeal as to
the expected testimony of all of his proposed witnesses suggests
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that the testimony would not have been relevant or, if relevant,
would have been cumulative, at best.
4. Claims of harassment and excessive force
Assuming, without deciding, that Matthews properly raised
and preserved an objection to the district court's refusal to send
his allegations of harassment as a separate claim to the jury,
there was no error. These claims did not rise to the level of a
constitutional violation. See Skinner v. Cunningham, 430 F.3d 483,
489 (1st Cir. 2005) (slamming cell door, threats, discourtesies,
epithets, and false charges on petty matters do not amount to an
Eighth Amendment violation). Nor did the court err in refusing to
put to the jury Matthews' complaint about the enforcement of the
prison's strip search policy.
Matthews' suggestion that he sufficiently raised and
preserved a claim under the Massachusetts Civil Rights Act, Mass.
Gen. Laws ch. 12, § 11, ("MCRA") fares no better. "The MCRA
creates no substantive civil rights; rather, it provides a
mechanism for obtaining relief from the interference, or attempted
interference, with rights conferred by Federal or Massachusetts
law." Howcroft v. City of Peabody, 51 Mass. App. Ct. 573, 593, 747
N.E.2d 729, 745 (2001). Matthews' allegations of harassment do not
rise to the level of a constitutional violation and, on appeal, he
has not identified any other right secured by federal or state law
for which the MCRA might provide legal redress.
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Similarly, there was no error in the district court's
refusal to issue a separate jury instruction on the use of
excessive force, concluding that it was satisfied that the charge
given covered it. Matthews does not point to any particular
deficiency in the charge given. And, we reject his garbled
contention that the standard of proof for a claim of excessive
force is somehow different from that of an Eighth Amendment claim.
See Whitley v. Albers, 475 U.S. 312, 327 (1986) ("We think the
Eighth Amendment, which is specifically concerned with the
unnecessary and wanton infliction of pain in penal institutions,
serves as the primary source of substantive protection to convicted
prisoners ... where the deliberate use of force is challenged as
excessive and unjustified.").
5. Claim of retaliation
Matthews opined that Officers Vargas and Lemon had filed
their counterclaims in retaliation for his own claims against them.
He sought to question these officers as to whether either had ever
been assaulted by other inmates but had failed to sue them for
their injuries. The district court precluded this line of
questioning and did not abuse its discretion in doing so. Torres-
Arroyo v. Rullan, 436 F.3d 1, 7 (1st Cir. 2006) (a decision to
exclude evidence is reviewed for abuse of discretion). Citizens
have the right to file counterclaims that, as was the case here,
have an arguable basis. The court acted within its discretion to
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confine the questioning to the particular incidents at issue here
and to refuse Matthews' desire to explore the possible existence of
potential, but unpursued, claims against other inmates. We note
that Matthews was permitted to argue in his closing that Vargas and
Lemon had brought their counterclaims only as an unsuccessful
attempt to intimidate him into dropping his suit.
6. Directed verdicts
Matthews claims error in the directed verdicts entered in
favor of three defendants, who Matthews had sued in their
supervisory capacity. Since summary judgment was properly granted
in favor of the medical defendants, there was no error in granting
directed verdicts in favor of Lieutenant Gomes and Superintendent
Marshall. Similarly, since the jury found against Matthews with
respect to his claims concerning the incidents of October 7, 1997,
there was no error in the directed verdict in favor of Captain
McGonagle. With no finding of a constitutional violation, there
can be no supervisory liability. See Hatfield-Bermudez v.
Aldanondo-Rivera, 496 F.3d 51, 63 (1st Cir. 2007).
7. Evidentiary rulings
Finally, we have considered Matthews' myriad complaints
about various of the district court's evidentiary rulings. Many of
these complaints are terse recitations without substantive
supporting legal argument. We have considered them all, but
decline to respond point by point. We reject them all.
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The judgment of the district court dated November 9, 2004
is affirmed.
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